Pickett v. Hospital Service District of West Feliciana Parish et al
Filing
65
RULING granting in part and denying in part 37 Motion for Summary Judgment. Signed by Judge Shelly D. Dick on 6/15/2018. (SGO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JUANITA PICKETT
CIVIL ACTION
VERSUS
16-219-SDD-RLB
THE HOSPITAL SERVICE DISTRICT OF
WEST FELICIANA PARISH, LOUISIANA
AND THE BOARD OF COMMISSIONERS
OF THE HOSPITAL SERVICE DISTRICT
OF WEST FELICIANA
RULING
This matter is before the Court on the Motion for Summary Judgment1 filed by
Defendants, The Hospital Service District of West Feliciana Parish Louisiana and the
Board of Commissioners of the Hospital Service District of West Feliciana (“Defendants”).
Plaintiff, Juanita Pickett (“Plaintiff” or “Pickett”), filed an Opposition2 to which Defendants
filed a Reply,3 and Plaintiff filed a Sur-Reply.4 Defendants also filed a Sur-Reply.5 For the
following reasons, the motion will be granted in part and denied in part.
I.
FACTUAL AND PROCEDURAL BACKGROUND6
Plaintiff, an African-American female, was hired as a PRN and Registered Nurse
by the Hospital Service of West Feliciana Parish, Louisiana (“Hospital”) on May 4, 2012.
Before working for the Hospital, Plaintiff worked as a staff nurse for over 15 years. Plaintiff
claims that white employees, who were allegedly less qualified than her, were given
promotions.
Plaintiff further alleges that she was repeatedly denied promotional
1
Rec. Doc. 37.
Rec. Doc. 42.
3
Rec. Doc. 48.
4
Rec. Doc. 51.
5
Rec. Doc. 54.
6
The Court bases the factual background on Rec. Doc. 1.
2
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opportunities and “paid in a disparate fashion” because she is African-American.7 Around
the time Plaintiff was hired, the Hospital also hired a white female nurse who was allegedly
paid $30 an hour on account of her race, while Plaintiff was only paid $27 an hour with
no shift differentials. Plaintiff further claims that, at the time of her termination, she was
still being paid less by the Hospital than a white nurse at $29 an hour.
Plaintiff also claims that she was subjected to racial harassment consisting of, but
not limited to: derogatory statements regarding African-Americans; comments that
African-Americans “needed to know their place;” placing Plaintiff as the head of
housekeeping “because she can [] relate”8 as all the employees in housekeeping are
African-American; and white nurses refusing to treat African-American patients. Plaintiff
also contends that Defendants did not have a policy regarding harassment,
discrimination, and retaliation while she was an employee.
Around December 9, 2013, Plaintiff expressed her interest in the positions of
Compliance Officer to the CEO of the Hospital, Lee Chastant (“Chastant”). Chastant
assigned one of the open positions to a white female with a respiratory therapy
background and allegedly less education and credentials than Plaintiff, who Plaintiff
further claims was unqualified for the position of interim or permanent Compliance Officer.
Another nurse was appointed to the positions of Utilization Review/Infection Control and
Employee Nurse who allegedly had less experience than Plaintiff. Plaintiff protested the
denial of her appointment to the position arguing the decision was racially motivated.
7
8
Id. at p. 2.
Id. at p. 3.
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On April 8, 2014, the nursing department had a meeting wherein Chastant stated
that five positions would be posted for all interested employees per Hospital policy.
Plaintiff emailed Defendants on May 28, 2014 detailing specific instances during her
employment with the Hospital that she alleged constituted racism: “failure to post
positions in preference of whites, appointment of unqualified whites, and unequal pay to
blacks.”9 Chastant allegedly responded to Plaintiff’s email denying all of the above
allegations.
Plaintiff wrote a letter to Chastant and Neta Leake (“Leake”), Human Resources
Manager, on June 4, 2014, alleging that she had not been promoted to positions for which
she was qualified, and she was underpaid because she was an African-American female.
Leake responded to Plaintiff on June 23, 2014 stating that she was setting up a meeting
with Chastant and Kevin Mulligan, a Human Resources Consultant. On July 7, 2014,
Plaintiff meet with Chastant and Mulligan. Plaintiff alleges that, during this meeting,
Chastant admitted that he had not posted the positions and “that he knew he should
have.”10 During the meeting, Plaintiff asked for information regarding employee salaries
for the purpose of determining if employees were paid differently on the basis of race,
information on how interim appointments were made, and she again protested her alleged
denial of promotions because she is African-American.
On August 12, 2014, a member of the Board met with Judy Jones (“Jones”), a
nurse, and allegedly told Jones that promotions were not given to Plaintiff and others
9
Id. at p. 4.
Id. at p. 5.
10
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“because of race, and to file a written complaint with the Board, and make sure that press
was there for the Board meeting.”11
Plaintiff and other African-American nurses presented their complaints of racism
to the Board on August 21, 2014. At this meeting, Plaintiff, along with other AfricanAmerican nurses, provided each member of the Board with emails and correspondence
regarding their complaints of racism, “to no avail.”12 On September 17, 2014, Plaintiff
filed a charge of discrimination with the Equal Employment Opportunity Commission
(“EEOC”) and the Louisiana Commission on Human Rights (“LCHR”).
Plaintiff alleges that, after the board meeting, Plaintiff and her African-American
co-workers were “wrongfully accused of committing HIPAA violations, subjected to
licensure complaints with their licensing boards, and falsely accused of misconduct by
defendants in retaliation/reprisal for Petitioner’s protected activities.”13 Plaintiff alleges
that several Health Insurance and Portability Accountability Act (“HIPAA”) and Emergency
Medical Treatment and Active Labor Act (“EMTALA”) violations made by white employees
were reported to Human Resources and Chastant, but no action was taken against the
white employees.
On December 15, 2014, Dr. Anthony Shields, Chief Medical Officer, called Plaintiff
and told her she would be suspended without pay for alleged HIPAA violations and that
a letter would be emailed from Chastant regarding her suspension. Dr. Shields also
11
Id.
Id.
13
Id. at pp. 5-6.
12
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allegedly told Plaintiff not to report to work on December 16, 2014, but “he couldn’t explain
exactly why [Plaintiff] was being suspended.”14
A total of five nurses were allegedly suspended for HIPAA violations. Plaintiff
alleges that the white nurses who were suspended with pay were given the opportunity
to resign but allowed to return to work; however, the two African-American nurses were
suspended without pay and “were fired and not given any due process, they were never
given the chance to meet and discuss the false allegations.”15 On December 16, 2014,
Plaintiff informed an employee of the Hospital that she wanted her attorney present when
she was questioned by the Hospital’s attorney; this request was denied. On December
26, 2014, Plaintiff again alleged racial discrimination and reported two HIPAA violations
that were “summarily dismissed by defendants,” and the Defendants did not discipline
these Caucasian employees.16
Plaintiff alleges that Defendants backdated her letter of termination, with no
explanation, on January 9, 2015. Plaintiff was reported by Defendants to the Board of
Nursing regarding the alleged HIPAA violations, placing Plaintiff’s nursing license in
danger. The Board of Nursing closed the investigation of the alleged HIPAA violations
and found that Plaintiff had not committed HIPAA violations.
On March 22, 2017, this Court issued a Ruling17 granting in part and denying in
part the Defendants’ Motion to Dismiss18 for failure to state a claim. In this Ruling, the
14
Id. at p. 6.
Id. at p. 7.
16
Id.
17
Rec. Doc. 26.
18
Rec. Doc. 13.
15
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Court dismissed Plaintiff’s state law harassment and retaliation claims.19 The Defendants
now move for summary judgment on Plaintiff’s Title VII and state law discrimination claims
for failure to promote, disparate pay, discriminatory discipline, hostile work environment,
and retaliation.
II.
LAW AND ANALYSIS
A. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”20 “When assessing whether a dispute to any material fact exists, we consider all
of the evidence in the record but refrain from making credibility determinations or weighing
the evidence.”21 A party moving for summary judgment “must ‘demonstrate the absence
of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
case.”22 If the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the existence
of a genuine issue concerning every essential component of its case.’”23 However, the
non-moving party’s burden “is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.”24
19
Rec. Doc. 26, p. 15.
Fed. R. Civ. P. 56(a).
21
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
22
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003)(quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552)).
23
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
24
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
20
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Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”25 All reasonable factual
inferences are drawn in favor of the nonmoving party.26 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”27 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his
allegations … to get to a jury without any “significant probative evidence tending to
support the complaint.”’”28
B. Title VII Race Discrimination
1. Failure to Promote Burden of Proof
In order to survive Defendants’ motion for summary judgment on her failure to
promote claims, Pickett must establish a prima facie case of discrimination by providing
summary judgment evidence that she: “(1) is a member of a protected class; (2) that [s]he
applied and was qualified for a job for which the employer was seeking applicants; (3)
that, despite [her] qualifications, [she] was rejected; and (4) that, after [her] rejection, the
position remained open and the employer continued to seek applicants from persons of
plaintiff’s qualifications.”29 If Plaintiff meets her prima facie burden, the Defendants must
“produce a legitimate, nondiscriminatory reason for the failure or refusal to [promote] the
25
Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
26
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
27
RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
28
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
29
Sharkey v. Dixie Elec. Membership Corp., 262 F.App’x. 598, 602 (5th Cir. 2008).
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plaintiff.”30 If the Defendants proffer a legitimate, nondiscriminatory reason for the failure
or refusal to hire Plaintiff, Plaintiff then “bears the ultimate burden of proving that the
defendant’s proffered legitimate nondiscriminatory reason is pretext for discrimination. To
carry this burden, the plaintiff must rebut each nondiscriminatory reason articulated by
the defendant.”31 Pickett alleges that the Defendants failed to promote her to the positions
of compliance officer, utilization review, infection control coordinator, and employee
health nurse because she is an African-American.32
a. Compliance Officer Position
In December 2013, Perkins, a white female, was named as the Director of
Compliance for the Hospital.33 Perkins became the Director of Compliance when Mary
Morse (“Morse”) ended her employment at the Hospital.34 Plaintiff maintains that the
appointment of Perkins to the compliance officer position was discriminatory.
The Defendants move for summary judgment on the second prong, arguing
namely that there is no summary judgment evidence that Plaintiff applied for the positions
in question, or even “voiced her interest” in the compliance officer position.35 The Plaintiff
maintains that she “orally applied for the position[] of Compliance Officer.”36 Plaintiff’s
cited deposition testimony does not support her assertion that she “orally applied for the
position[] of compliance officer.”37 In an email sent to Chastant on May 28, 2014, Plaintiff
stated she was “very interested [in the compliance officer position] as well as [sic] others
30
Id.
Id.
32
Rec. Doc. 45, p. 18.
33
Rec. Doc. 37-5, p. 7, ll. 22-25, p. 8, l.1.
34
Rec. Doc. 37-4, p. 8, ll. 21-24.
35
Rec. Doc. 37-1, p. 13.
36
Rec. Doc. 45, p. 18.
37
Id.
31
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positions and [sic] meet all the qualifications, yet was denied the opportunity to apply [].”38
While there is summary judgment evidence that Pickett expressed interest in the
compliance officer position, there is no summary judgment evidence that Pickett applied
for the position or that she expressed her intent to apply for the position. Accordingly, the
Court finds that Plaintiff has failed to demonstrate with summary judgment evidence that
she applied for the position of compliance officer, and thus fails to establish this prima
facie requirement for a Title VII failure to promote claim.39
Plaintiff argues in the alternative that it would have been “futile” for her to apply for
the compliance officer position.40 Pickett relies on the United States Supreme Court’s
decision in International Brotherhood of Teamsters v. United States41 for her assertion
that a “plaintiff’s failure to apply for the position does not bar her claim if she can show
that such an application would have been a futile gesture.”42 Under controlling Fifth
Circuit jurisprudence, Pickett must show “that the application for the promotion was
deterred by a known and consistently enforced policy of discrimination.”43
Plaintiff
provides no evidence of a consistently enforced policy of discrimination; her allegation
that she was not promoted to the position of compliance supervisor because “her race
38
Rec. Doc. 42-2, p. 85.
Plaintiff bases her argument for failure to promote upon a four part test outlined by the Supreme Court in
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Given that the Fifth Circuit
applies an updated four part test for failure to promote following the Supreme Court’s 1981 decision in
Texas Dept. of Community Affairs, and Plaintiff provides no argument why the Fifth Circuit’s four part test
should not apply in this case, the Court will apply the four part failure to promote test articulated by the Fifth
Circuit in Sharkey v. Dixie Elec. Membership Corp., 262 F.App’x. 598, 602 (5th Cir. 2008), and most recently
in Jenkins v. Louisiana Workforce Commission, 713 F.App’x. 242, 244-45 (5th Cir. 2017).
40
Rec. Doc. 45, pp. 18-19.
41
431 U.S. 324, 363-66 (1977).
42
Rec. Doc. 45, pp. 18-19.
43
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 406 (5th Cir. 1999).
39
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was black”44 is merely conclusory and unsupported by evidence of an application.
Plaintiff argues that these three alleged statements by Chastant demonstrate that
it would have been futile for her to apply for the position: “1) confirm[ed] whites as opposed
to black applicants were getting promotions because it was in keeping with the landscape;
2) confirm[ed] he was ‘replacing white people with white people,’ 3) command[ed] Haley
to stay in her place.”45 In a letter that was purportedly sent from Chastant to Pickett,
Chastant stated: “During the last year or so, we have had management departures (all
white females – I point that out solely because your communications and that of others
focus upon race, and less importantly, sex discrimination allegations) which have
changed the staffing landscape quite significantly.”46
Plaintiff interprets Chastant’s words that management departures have “changed
the staffing landscape” as an expression that white applicants would be promoted in
preference to black applicants.47 Plaintiff stated in her deposition that she never heard
Chastant state that promotions were made “in keeping with the landscape.”48 The plain
language of Chastant’s letter to Pickett, which is Plaintiff’s sole support regarding this
comment, does not provide competent summary judgment evidence that Chastant
communicated that hiring decisions were being made the goal of replacing white
employees with white employees.
Pickett also alleges that Chastant told Carolyn Haley, an African-American nurse,
44
Rec. Doc. 45, p. 20.
Id. at p. 47.
46
Rec. Doc. 37-3, pp. 123-124 (emphasis added).
47
See Rec. Doc. 45, p. 27.
48
Rec. Doc. 37-3, p. 89, ll. 5-10.
45
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to stay in her place;49 however, Pickett admitted in her deposition she never heard
Chastant tell any African-American employee that they needed to stay in their place.50
An unsupported belief that this stamen was made is not competent summary judgment
evidence that the act occurred.
There is simply no competent summary judgment
evidence that Chastant told her or any African-American employee to “stay in her place.”
Accordingly, the Court finds that Plaintiff’s claim that her application for the compliance
officer position was futile fails because she has not provided summary judgment evidence
that “the application for the promotion was deterred by a known and consistently enforced
policy of discrimination.”51 Accordingly, the Defendants’ motion for summary judgment
on Plaintiff’s failure to promote claim for the compliance officer position is GRANTED
b. Infection Control Coordinator and Employee Health Nurse Positions
Plaintiff also argues that the Defendants failed to promote her to the infection
control coordinator and employee health nurse positions because she was an AfricanAmerican.52 The infection control coordinator position and the employee health nurse
position became available in December 2013, when Mary Morse, a registered nurse,
resigned.53 Like her application for the compliance officer position, the record evidence
does not support Pickett’s contention that she orally applied for the position, or that she
submitted a formal application.54 Plaintiff relies on the same deposition evidence to
support her argument that she applied for the employee health nurse and infection control
49
Rec. Doc. 45 at p. 17.
Rec. Doc. 37-3, p. 89, ll. 11-21.
51
Shackelford, 190 F.3d at 406.
52
Rec. Doc. 45, p. 18.
53
Rec. Doc. 37-4, p. 8, ll. 20-24.
54
See supra nn. 36-39.
50
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coordinator position as she did above for the compliance officer position. Accordingly,
the Court finds, for the above stated reasons, that Plaintiff has failed to provide summary
judgment evidence that she orally applied for the compliance officer and employee health
nurse position.
Again Plaintiff argues alternatively that her submission of the applications for the
compliance officer and employee health nurse position would have been futile. Once
again Pickett relies on the same record evidence and jurisprudence to support her futility
argument for the compliance officer and employee health nurse position and the
compliance officer application.55 For the above stated reasons, the Court finds that
Pickett has not demonstrated applying the compliance officer and employee health nurse
positions was futile given that she has provided no summary judgment evidence that “the
application[s] for the promotion[s] w[ere] deterred by a known and consistently enforced
policy of discrimination.”56 Accordingly, the Defendants’ motion for summary judgment
on Plaintiff’s failure to promote claims for the compliance officer, infection control
coordinator, and employee health nurse positions is GRANTED.
c. Utilization Review Position
Pickett also contends the Defendants failed to promote her to the position of
utilization review because she is an African-American.57 The utilization review position
became available in December 2013 when Morse resigned.58
Christy Stone, a white
female, was named to the utilization review position, but later resigned.59 Pickett testified
55
See supra nn. 26-43.
Shackelford, 190 F.3d at 406.
57
Rec. Doc. 43-2, p. 16.
58
Rec. Doc. 37-4, p. 8, ll. 23-24, p. 43-2, p. 16.
59
Rec. Doc. 37-4, pp. 20, ll. 2-6, 13, ll. 7-17.
56
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that she applied for the utilization review position.60 Angel Noble (“Noble”), a white
female, was ultimately appointed to the utilization review position 2014.61 The Defendants
do not challenge Plaintiff’s prima facie case with respect to this position; rather, they aver
that they have articulated legitimate, nondiscriminatory reasons for selecting Noble to fill
the utilization review position.62
Under McDonnell Douglas burden shifting, the
Defendants have the obligation to “produce a legitimate, nondiscriminatory reason for the
failure or refusal to hire the plaintiff.”63 The Defendants’ stated that Noble was selected
as the best candidate because she had shown “great interest in the position,” was ranked
“the next best candidate in June 2014 when Ms. Stone was selected for the position,” and
Noble “had shown a good familiarity with the discharge plan at the hospital.”64
The Plaintiff maintains that Chastant “could not testify as to a specific reason why
Noble was hired over Pickett.”65 The Fifth Circuit in Manning v. Chevron Chemical Co.,
LLC.66 examined whether an employer must state the specific reasons why a protected
employee was not granted a promotion in order to satisfy the McDonnell Douglas burden
shifting standard. The plaintiff in Manning, like Pickett, argued that “[the defendant] was
required to explicitly state that it chose [the successful candidate] because they were
more qualified than [plaintiff].”67 The Manning court disagreed with the plaintiff’s argument
and stated: “[defendant’s] statement that it chose the ‘best qualified’ candidates clearly
implies that it selected [the successful candidates] because they were better qualified
60
Rec. Doc. 37-3, p. 97, ll. 21-24.
Rec. Doc. 37-4, pp. 20, ll. 2-6, 13, ll. 7-17.
62
Rec. Doc. 37-1, pp. 14-15.
63
Id. at p. 15.
64
Id.
65
Rec. Doc. 45, p. 22.
66
332 F.3d 874, 881 (5th Cir. 2003).
67
Id.
61
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than [plaintiff].”68 Because the Defendants in the case at bar have proffered the identical
legitimate, nondiscriminatory reason for failing to promote Pickett as offered by the
defendant in Manning, the Court finds that Defendants have articulated a legitimate,
nondiscriminatory reason for not promoting Pickett to the utilization review position.
Under McDonnell Douglas burden shifting, Pickett now “bears the ultimate burden of
proving that the defendant’s proffered legitimate nondiscriminatory reason is pretext for
discrimination.
To carry this burden, the plaintiff must adduce summary judgment
evidence that rebuts each nondiscriminatory reason articulated by the defendant.”69
Plaintiff argues that the Hospitals proffered defense that Stone was the best
qualified candidate for the position is pretext for discrimination because that she was more
qualified for the utilization review position that Noble.70 Pickett’s contention that she is
more qualified is based on her fifteen years of experience – which Noble herself
acknowledged in her deposition.71 According to Plaintiff, relying on the Fifth Circuit’s
decision in Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc.,72 “an employers’ alleged
reasons are pretextual when defendant’s employee admitted the plaintiff had more
experience than his replacement[.]”73
In Burrell, Dr. Pepper, the defendant, hired a white male over an African-American
male because the white male had more “purchasing experience in the bottling industry”74
which allegedly made the white candidate “better” for the position. The Fifth Circuit in
68
Id.
Id.
70
Rec. Doc. 45, p. 22.
71
Rec. Doc. 42-5, pp. 78-79.
72
482 F.3d 408, 411-16 (5th Cir. 2007).
73
Rec. Doc. 45, pp. 19-20.
74
Burrell, 482 F.3d at 412.
69
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Burrell, stated that the plaintiff had:
two methods available to him to try to prove that Dr. Pepper’s
proffered reason for failing to promote him was a pretext for
racial discrimination: (1) Burrell could show that Dr. Pepper’s
proffered explanation is false or ‘unworthy of credence;’ or (2)
Burrell could try to prove that he is ‘clearly better qualified’
than the person selected for the position.’75
The plaintiff in Burrell presented the following deposition testimony of his employer
referencing the plaintiff’s:
[] strong background in purchasing and [the white male’s]
relatively weak background, along with his exemplary
performance of the Vice President of Purchasing duties during
[white male employee’s] initial months of employment,
supports the conclusion that Dr. Pepper did not seek
someone with more ‘purchasing experience in the bottling
industry.’76
Dr. Pepper countered by stating that the African-American male’s purchasing experience
during the initial months of the white male’s employment was merely “functionary.”77 Dr.
Pepper also argued that the white employee’s thirteen years of experience and his two
years of management were valuable experience for the position to which he was
ultimately appointed.78 After examining the record, the Burrell court found that the plaintiff
had
presented
summary
judgment
evidence
that
Dr.
Pepper’s
proffered
nondiscriminatory reason for failure to promote was pretext.79 The Burrell court focused
on the white employee’s deposition testimony that his experience “did not necessarily
qualify him”80 to handle his position at Dr. Pepper, and the deposition of the Dr. Pepper
75
Id.
Id. at 412-13.
77
Id. at 413.
78
Id.
79
Id.
80
Id.
76
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supervisor who admitted that plaintiff “had more relevant [] experience”81 than the white
male who was promoted.
In the present case, Noble stated that Pickett was more qualified for the utilization
review positon “because she had more years of experience.”82 Chastant stated that
Noble was selected because she filed an application for the position when it originally
became available in June 2014.83 Chastant also stated that Noble was selected because
she had served as a “backup” to the previous employee who held the utilization review
position.84 Plaintiff argues that Stone’s original appointment to the utilization review
position in June 2014 was against hospital policy because the position was not posted.85
Chastant admitted in his deposition that Noble’s appointment to the position in June 2014,
which Plaintiff maintains was against Hospital policy, posted, gave her “experience with
the position” which “was a plus.”86
Because the alleged experience which gave Noble an advantage in the application
process for this position was the result of an admitted violation of hospital policy, and
Noble’s testimony that Pickett had more experience, the Court finds that Plaintiff has
presented summary judgment evidence demonstrating a material issue of fact as to
whether the Defendants’ alleged reasons for promoting Noble are pretext for racial
discrimination. Accordingly, the Defendants’ motion for summary judgment on Plaintiff’s
failure to promote to the utilization review position is DENIED.
81
Id. at 414.
Rec. Doc. 42-5, p. 78, ll. 15-25, p. 79, ll. 1-2.
83
Id. at p. 38, ll. 7-10.
84
Id. at p. 37, ll. 7-10.
85
Rec. Doc. 45, p. 5.
86
Rec. Doc. 37-4, p. 23, ll. 17-19.
82
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2. Disparate Pay
To establish her prima facie case for disparate pay, Plaintiff must establish that:
“[(1)] [s]he is a member of a protected class, and [(2)] that [s]he is paid less than a
nonmember for work requiring substantially the same responsibility.”87 It is undisputed
that Pickett is a member of a protected class. Plaintiff argues that she was paid less than
two white registered nurses, Shannon White (“White”), Joseph Williams (“Williams”), and
Melanie Bickham (“Bickham”).88
Pickett argues that she was initially hired in 2012 as a PRN at an initial rate of pay
of $27.00 per hour.89 Pickett maintains that Bickham was hired six months before she
began working at the Hospital as a PRN, but Bickham was paid a rate of $30.00 per
hour.90 Plaintiff cites no record evidence, other than her own testimony and hearsay
evidence that Bickham was paid a rate of $30.000 per hour.91 Given that Plaintiff has not
provided competent summary judgment evidence of Bickham’s initial rate of pay, Pickett
has failed to demonstrate that Bickham, one of her alleged comparators, was paid at a
higher rate of pay.
According to Pickett, a white RN, was paid more than Plaintiff. Pickett alleges that
White was hired at a rate of $25.00 an hour seven years prior to Pickett’s start date at the
Hospital, and by the time Plaintiff was hired, White was paid at a rate of $32.02.92 Once
again, Plaintiff fails to cite record evidence to support this claim. Plaintiff also provides
87
Taylor v. United Parcel Service, Inc., 554 F.3d 510, 522 (5th Cir. 2008).
Rec. Doc. 45, p. 23.
89
Rec. Doc. 42-3, p. 34.
90
Rec. Doc. 45, p. 23.
91
See Rec. Doc. 45, p. 23.
92
Rec. Doc. 45, p .2.
88
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no summary judgment evidence, other than her own assertion, that Ritchie was paid
$2.02 per hour more than herself. Accordingly, the Court finds that the Plaintiff has not
met her prima facie burden for a disparate pay claim, and the Defendants’ motion for
summary judgment on Pickett’s disparate pay claim is GRANTED.
3. Hostile Work Environment
Plaintiff alleges that she was subjected to harassment under Title VII because the
Defendants created a hostile work environment during her employment. According to
Fifth Circuit jurisprudence, the Plaintiff must offer summary judgment evidence of the
following five elements to meet her prima facie burden for a hostile work environment
claim:
(1) The employee belongs to a protected group; (2) the
employee was subjected to unwelcome harassment; (3)
the harassment complained of was based on race; (4) the
harassment complained of affected a term condition or
privilege of employment; (5) the employer knew or should
have known of the harassment in question and failed to
take prompt remedial action.93
The Fifth Circuit in Ramsey v. Henderson94 stated: “For a harassment on the basis of
race to affect a term, condition, or privilege or employment, as required to support a
hostile work environment claim under Title VII, it must be ‘sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an abusive working
environment.’”95 Further, “[i]n determining whether a workplace constitutes a hostile work
environment, courts must consider the following circumstances: ‘the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or
93
Brew v. Weyerhaeuser NR Co., 537 F.App’x. 309, 313 (5th Cir. 2013)(internal citations omitted).
286 F.3d 264, 268 (5th Cir. 2002)(internal citations omitted).
95
Id.
94
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a mere offensive utterance; and whether it unreasonably interferes with an employee’s
work performance.’”96
Plaintiff has alleged that she heard Dr. Shields, the Medical Director of the
Hospital, (“Shields”) “refer to an obese black patient by saying, ‘I didn’t go to school to be
a veterinarian[,]’”97 and refer[red] to a black child as “Let’s get this little MFer out of here.”98
However, Plaintiff admitted in her deposition that the only statement which she actually
heard was the veterinarian comment.99 Plaintiff believes that Chastant allegedly told
Jones “that she needed to be in housekeeping because she could relate,” but Plaintiff
admitted that she did not directly hear this alleged statement either.100 Further, as set
forth above, the Court has found that there is no summary judgment evidence supporting
Plaintiff’s claim that Chastant told Pickett that she needed to “know her place,” or that
hiring decisions were made with the objective of replacing white employees with white
employees.101 In short, there is no competent summary judgment evidence that Plaintiff
was subjected to or actually overheard racially disparaging comments firsthand. Plaintiff
argues that, “under the law, it is the totality of the circumstances, not any single event,
which gives rise to liability for racial harassment;”102 however, Plaintiff cites no
jurisprudence in support of this assertion.
Regarding the veterinarian comment made by Dr. Shields,103 Plaintiff’s deposition
testimony makes clear that Dr. Shields disparaging comment was not due to the patient’s
96
Id.
Rec. Doc. 45, p. 4, Rec. Doc. 37-3, p. 88.
98
Rec. Doc. 37-3, p. 89, ll. 1-4.
99
Id., p. 88, ll. 1-6, 22-23.
100
Id. at p. 89, ll. 11-14, 21, 22-25.
101
See supra nn. 45-51.
102
Rec. Doc. 45, p. 26.
103
Rec. Doc. 37-3, p. 88, ll. 1-6, 16-25.
97
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race, but because the patient was obese; “When [Dr. Shields] came out, walked in the
nurses’ station, he was like ‘I didn’t go to school to be a veterinarian.’ I was like ‘Courtney,
what happened?’ And she was like, ‘The patient was overweight.’”104
The Plaintiff
attributes Dr. Shield’s comment to the patient’s obesity not the patient’s race. Assuming
arguendo that Shield’s one-time comment was racially discriminatory, a one-time,
aberrant comment is not summary judgment evidence of conduct that was “so severe or
pervasive that it created a work environment abusive [to her].”105
With regard to the comments allegedly made by Ford and Ritchie, both supervising
nurses, Pickett testified that Ford told her that “she needed to know her place”106 and
“[she should be] happy [she] has a job.”107 Pickett presents no summary judgment
evidence that these comments were racially motivated.
Pickett alleges that Ritchie
refused to treat an African-American patient with decubitus.108
Pickett’s deposition
testimony indicates her belief that Ritchie’s reluctance to treat the patient with decubitus
was “because she was incompetent.”109 Plaintiff testified that she believed it was Ritchie’s
alleged incompetence which lead her to feel “uncomfortable” and reluctance to treat both
African-American and white patients.110 There is no record evidence that Ritchie refused
to treat the African-American patient because of his race or that she ever called an
African-American patient a derogatory name. Plaintiff has failed to satisfy the second
prong of her prima facie case for hostile work environment because she has not provided
104
Id. at 16-23.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 371 (1993).
106
Rec. Doc. 37-3, p. 89, ll. 11-17.
107
Id. at p. 95, ll. 6-11.
108
Rec. Doc. 37-3, p. 90. Decubitus ulcers are more commonly known as bedsores. See Stewart v. Murphy,
174 F.3d 530, 536 (5th Cir. 1999).
109
Id. at p. 91, ll. 3-4.
110
Id. at ll. 13-24.
105
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summary judgment evidence that Ritchie or Ford’s actions were racially motivated.
Accordingly, Defendants’ motion for summary judgment on this claim is GRANTED.
4. Retaliation
The Defendants argue that Plaintiff has not provided summary judgment evidence
of her unlawful retaliation claim. To meet her prima facie burden, Pickett must show that:
“(1) [s]he participated in an activity protected by Title VII; (2) [her] employer took an
adverse employment action against [her]; and (3) a causal connection exists between the
protected activity and the adverse employment action.”111 Pickett satisfied the first prong
of her prima facie burden when she filed her EEOC intake questionnaire on September
17, 2014,112 because the intake questionnaire serves as the initial step in a Title VII
investigation from the EEOC.113 Pickett’s termination on December 26, 2014114 clearly
qualifies as an adverse employment action because it “affect[ed] the terms and conditions
of [her] employment.”115 Pickett argues that she meets the third prima facie element
because “there is a temporal proximity between all of Pickett’s protected activity and all
of Defendants’ adverse actions.”116
Pickett relies on the Fifth Circuit’s decision in Shackelford v. Deloitte & Touche,
LLP.117 in support of her temporal proximity argument. According to Plaintiff, as long as
there is a Title VII protected activity and an adverse employment action taken within four
111
Stewart v. BrownGreer, P.L.C., 655 F.App’x. 1029, 1031 (5th Cir. 2016).
Rec. Doc. 20-1, pp. 3-6.
113
“Title VII’s anti-retaliation provision forbids employer actions that ‘discriminate against’ an employee (or
job applicant) because he has ‘opposed’ a practice that Title VII forbids or has ‘made a charge, testified,
assisted, or participated in’ a Title VII ‘investigation proceeding, or hearing.’” Burlington Northern and Santa
Fe Ry. Co. v. White, 548 U.S. 53, 59, 126 S.Ct. 2405, 2410 (2006).
114
Rec. Doc. 45, p. 13.
115
Burlington, 548 U.S. at 64.
116
Rec. Doc. 45, p. 29.
117
190 F.3d at 401 (5th Cir. 1999).
112
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months, “a causal connection can be established.”118 However, Pickett’s argument is
contrary to the Fifth Circuit’s more recent Title VII retaliation decision in Strong v.
University Health Care LLC. where the court held: “We affirmatively reject the notion that
temporal proximity standing alone can be sufficient proof of but for causation. Such a
rule would unnecessarily tie the hands of employers.”119 Like the plaintiff in Strong,120
Pickett presented no summary judgment evidence that she was terminated because of
her EEOC complaint. Yet, unlike the plaintiff in Strong, Pickett argues that Defendants’
stated reason for her termination, violation of HIPAA and EMTALA, is untrue. Given that
Pickett asserts both a temporal proximity argument and evidence that the Defendants’
proffered reason for termination could be pretext for discrimination, the Court finds that
Pickett has satisfied the third element of her prima facie burden for her retaliation claim.
Under McDonnell-Douglas burden shifting, the Defendants must demonstrate that they
had a legitimate, non-retaliatory purpose for terminating her employment.121 Chastant
stated that Pickett was terminated for violating HIPAA laws.122 Because the Defendants
have proffered a legitimate, non-retaliatory purpose for terminating her employment, the
burden shifts back to Pickett to offer evidence that the Defendants’ proffered reason is
merely pretext for retaliation.123
As evidence of pretext, Pickett submits that two white employees, who were also
investigated for HIPAA violations, were not terminated – a fact which Chastant admitted
118
Rec. Doc. 45, p. 32, n. 167.
Strong v. University Healthcare System, L.L.C., 482 F.3d 802, 808 (5th Cir. 2007).
120
Id. at 808-09.
121
Id. at 805.
122
Rec. Doc. 37-4, p. 70.
123
Strong, 482 F.3d at 808.
119
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in his deposition.124
Because Pickett has provided summary judgment evidence that
white employees who violated HIPAA not terminated, the Court finds that Pickett has
satisfied her burden of demonstrating a material issue of fact whether the Defendants’
proffered reason for her termination is a pretext for discrimination. Accordingly, the
Defendants’ motion for summary judgment on Plaintiff’s retaliation claim is hereby
DENIED.
C. Discriminatory Discipline and Termination
Pickett alleges that Defendants violated her Title VII rights when she was
suspended without pay due to an alleged patient privacy violation, HIPPA, a work-rule
violation.125
Per the Fifth Circuit’s decision in Turner v. Kansas City Southern Railroad
Co.,126 “in work-rule violations cases [] a Title VII plaintiff may establish a prima facie case
by showing either (1) that he did not violate the rule, or (2) that, if he did, white employees
who engaged in similar acts were not punished similarly.”127 Pickett contends that she
did not commit the alleged patient privacy violations, which formed the alleged HIPAA
violation, and offers the finding of the Louisiana Nursing Board’s investigation as evidence
of such.128 Plaintiff also provides the deposition testimony of Judy Jones, her supervisor,
that Pickett accessed the patient records, the activity which forms the bases of the HIPPA
violation, because Jones instructed her to do so in order to perform quality assurance.129
Accordingly, there is summary judgment evidence of Pickett did not commit the work-rule
124
Rec. Doc. 37-4, p. 71.
Rec. Doc. 45, p. 24.
126
675 F.3d 887, 892-93 (5th Cir. 2012).
127
Id. (internal quotations omitted).
128
Rec. Doc. 42-2, pp. 106-11.
129
Rec. Doc. 37-6, p. 7, ll. 20-23, Rec. Doc. 42-5, p. 99, ll. 9-19.
125
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violation at issue in this case.
Under McDonnell-Douglass burden shifting, the Defendants must provide a
legitimate, non-discriminatory reason for Plaintiff’s suspension without pay for the alleged
patient privacy violation. The Defendants argue that she was suspended without pay
“because she refused to cooperate in the investigation and the uncontroverted evidence
established that patient records were accessed using Pickett’s credentials, WFPH
concluded that a HIPAA [sic] breached had occurred by Pickett.”130 Pickett counters that
the Hospital’s investigation into the alleged HIPAA violations occurred “without her input”
because she “refused to participate in the investigation by the requested date.”131 Plaintiff
argues that she was denied the opportunity to “rebut” the accusations against her.132
Because Plaintiff has provided summary judgment evidence that she did not commit the
alleged violation, and such evidence could have been presented during the Hospital’s
investigation, Pickett has provided summary judgment evidence that Defendants’
proffered reason is not legitimate.133
Accordingly, Defendants’ motion for summary
judgment on Plaintiff’s discriminatory discipline is DENIED.
Pickett also argues that Defendants discriminated when she was terminated for
the alleged patient privacy violations. In a disparate termination case, Pickett must
demonstrate that “(1) she is a member of a protected class; (2) that she was qualified for
the position at issue; (3) that she was the subject of an adverse employment action; and
(4) that she was treated less favorably because of her membership in that protected class
130
Rec. Doc. 37-1, p. 19.
Id. at p. 6.
132
Rec. Doc. 45, p. 12.
133
Rec. Doc. 37-6, p. 7, ll. 20-23, Rec. Doc. 42-5, p. 99, ll. 9-19.
131
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than were other similarly situated employees who were not members of the protected
class, under nearly identical circumstances.”134
Defendants argue that Plaintiff cannot meet the fourth element, “that similarly
situated employees outside of her protected group were treated more favorably under
nearly identical circumstances.”135 Plaintiff argues that a white employee, Stilwell, was
given the opportunity to resign as opposed to being fired as a result of the alleged HIPAA
violations.136 Stilwell, was a white employee with the Hospital who was also investigated
for alleged HIPAA violations.137 Given that Defendants offer no argument in opposition
to Plaintiff’s assertion that Stilwell was a similarly situated employee, Plaintiff has provided
summary judgment evidence of her prima facie burden for discriminatory termination.
Defendants’ non-discriminatory reason for allowing Stilwell to resign, and not
affording the same opportunity to Plaintiff, is that Pickett “never requested to be allowed
to resign.”138 Defendants proffer no evidence that Stilwell requested the opportunity to
resign or that her request was the basis for Defendants decision to allow her to resign as
opposed to terminating her employment. Given that Defendants provide no summary
judgment evidence in support of their non-discriminatory reason for terminating Pickett
instead of allowing her to resign, the Defendants’ motion for summary judgment is
DENIED.
D. Louisiana State Law Claims
The Defendants argue that Plaintiff’s state law LEDL claims should be analyzed
134
Moore v. University of Mississippi Medical Center, 719 Fed.Appx. 381, 385 (5th Cir. 2018).
Rec. Doc. 37-1, p. 21.
136
Rec. Doc. 37-4, p. 73, ll. 9-17.
137
Id. at p. 70, ll. 4-15, p. 71, ll. 7-8.
138
Rec. Doc. 48, p. 5.
135
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under the federal Title VII framework. Plaintiff offers no argument to the contrary. The
Louisiana Fourth Circuit in Plummer v. Marriott Corporation noted that, “because the
Louisiana statute is similar in scope to the federal anti-discrimination prohibitions in Title
VII of the Civil Rights Act of 1964, Louisiana court have routinely looked to the federal
jurisprudence for guidance in determining whether a claim has been asserted.”139 The
Fifth Circuit recognized this practice in Smith v. AT&T Solutions, Inc. stating, “Louisiana
courts have often looked to federal anti-discrimination jurisprudence in interpreting
Louisiana’s anti-discrimination statutes.”140 Given that both Louisiana appellate courts
and the Fifth Circuit have all recognized that the federal Title VII framework may be used
to analyze a Louisiana state law claim of discrimination and retaliation, the Court’s Title
VII reasoning and analysis set forth above applied equally to Plaintiff’s state law claims
of discrimination and retaliation.
Accordingly, the Defendants’ motion for summary judgment on Plaintiff’s state law
discrimination claims for failure to promote to the compliance officer, infection control
coordinator, and employee health nurse positions is granted, and denied as to the
utilization review position. Defendants’ motion for summary judgment on Plaintiff’s state
law disparate pay and retaliation claims are denied. Defendants’ motion for summary
judgment on Plaintiff’s state law hostile work environment claim is granted.
139
140
94-2025, pp. 6-7 (La.App. 4 Cir. 4/26/95), 654 So.2d 843, 848.
90 F’.Appx. 718, 723 (5th Cir. 2004).
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III.
CONCLUSION
For the reasons stated above, the Defendants’ Motion for Summary Judgment on
Plaintiff’s failure to promote for the compliance officer, infection control coordinator, and
employee health nurse position is GRANTED.141
Defendants’ Motion for Summary
Judgment on Plaintiff’s failure to promote for the utilization review position is DENIED.
Defendants’ Motion for Summary Judgment on Plaintiff’s disparate pay claim is
GRANTED.
Defendants’ Motion for Summary Judgment on Plaintiff’s hostile work
environment claim is GRANTED, Defendants’ Motion for Summary Judgment on
Plaintiff’s retaliation claim is DENIED, and Defendants’ Motion for Summary Judgment on
Plaintiff’s disparate discipline and termination claims are DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on June 15, 2018.
S
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
141
Rec. Doc. 37.
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